Published 7:18 pm, Sunday, November 22, 2015
In early November, the New York State Bar Association released a report calling on state officials to create a “preparatory commission” to prepare New York for the Nov. 7, 2017, statewide referendum on whether to call a state constitutional convention.
The report addresses an important need: New York has a badly outdated constitution in need of repair. Meanwhile, the public is mostly clueless about what’s in the constitution — or even that New York has a constitution. And getting a discussion going about how to fix the constitution is not something that comes naturally to either the people or their legislators, who are both distracted by their day-to-day problems. To get a thoughtful discussion going, the best way is indeed a preparatory commission.
So what’s not to like? It turns out, plenty.
The report observes in great detail that, since the late 19th century, New York has had a tradition of convening preparatory commissions. But it provides minimal guidance as to which of the different commission types is best. Worse, it implicitly endorses giving the Legislature effective veto power over the commission’s work.
The fundamental problem with the bar’s proposal is that it undermines the unique democratic function of New York’s constitutional convention process, which is to bypass the Legislature’s gatekeeping power over constitutional amendments. By design, a convention is a checks-and-balances institution, so a legislature has an institutional conflict of interest when given control over its agenda. A bipartisan commission staffed by experts doesn’t solve that conflict of interest.
Once upon a time, convention politics were different. In early New York history, a convention was the primary mode of constitutional change. Legislators may have disliked giving up control to a convention, but they had to take the good with the bad. But with the development and widespread use of the legislatively initiated constitutional amendment process, including various forms of constitutional commission, legislators no longer felt they needed to give up control to get their favored constitutional change.
During the 20th century, incumbent legislators also increasingly came to see serving in the Legislature as their primary career, which made them even more hostile to an institution that could open up a Pandora’s box of political competition and democratic accountability.
Preparatory commissions dominated by legislatures propose reforms that don’t require a convention. This, in turn, allows legislators and their allies to claim that the Legislature can do everything a convention could at less cost and with less risk. Voters are thus provided with an excellent reason to vote down both calling a convention and a convention’s work.
The bar’s plan is not without some merit. The Legislature has the money to fund the bar’s ambitious and admirable research agenda. The resulting reports may even be excellent, as the Legislature is not an implacable opponent of much useful constitutional reform, including streamlining the constitution. But for such reform we don’t need a convention.
I prefer the type of preparatory commission former Gov. Mario M. Cuomo implemented in preparation for the 1997 convention referendum — one that is created by executive order, is relatively inexpensive, and is independent of the Legislature.
But the archaic communications technologies relied on by that commission — a subject on which the bar report says nothing — need to be revisited. Figuratively, we need to move beyond a quill pen-and-ink commission design.
I also prefer allowing a convention to take over most traditional commission functions. This would entail dividing a convention into two stages, an educational stage followed by a traditional convention stage.
It’s not enough for a well-designed preparatory commission to be nonpartisan and have expert staff. It must also be independent of the Legislature. Otherwise, a commission will serve as a Trojan horse to undermine the constitutional convention’s democratic function. The bar’s recommendations fail the Trojan horse test, even as they highlight a problem desperately in need of solution.
Source: Snider, J.H., Board, Independent of Legislature, key to constitution fix, Albany Times Union, November 22, 2015.